Pate v. Swann

| Ind. | Nov 25, 1845

Blackford, J.

— This was an action of trespass against the defendants in error for forcibly taking away two of the plaintiff’s horses, &c., in November, 1844. One of the defendants, Cason, pleaded in bar as follows: That the other defendants, on the 20th of September, 1844, recovered a judgment against the present plaintiff, Pate, for 73 dollars; that a fieri facias was issued on the judgment, and was delivered to the defendant, Cason, as sheriff to be executed; that this defendant levied the execution upon the property mentioned in the declaration, and sold the same, &c. This plea was replied to as follows: That on, &c., after the levy of the execution and before the sale, the plaintiff being a householder, claimed of the sheriff the property levied on as exempt from execution; that the value of said property, including the articles owned by the plaintiff and designated by statute as exempt from execution, did not exceed 125 dollars.

J. S. Reid and 8. E. Perkins, for the plaintiff. J. Perry and J. Yaryan, for the defendants.

General demurrer to the replication, and judgment for the defendants.

There is an irregularity in this case. Only one of the defendants pleaded, and on a demurrer to a replication to his plea, the Court gave judgment for all the defendants.

We think the Court erred in sustaining the demurrer to the replication. The statute governing this case reserves to 'an execution-defendant the right of selecting, as exempt from execution, personal property not exceeding in value 125 dollars. It repeals all laws coming within its purview, and says that nothing in the revised laws of that session should be construed to contravene or repeal any of its provisions. R. S. 1843, pp. 1046, 7, ss. 9, 14. The replication states that, previously to the sale,, the plaintiff claimed of the- sheriff, as exempt from execution, the horses levied on, and avers that their value did not exceed 125 dollars. That is, under the statute, a good answer, to the plea. That part of the replication which speaks of articles designated by statute as exempt from execution, may be considered as surplusage.That the claim was made in time is settled-, under a statute similar to that above cited so far,as that matter is concerned, by the ease of Stephens et al. v. Lawson, Nov. term, 1844.

Per Curiam.

— The judgment is reversed with costs. Cause remanded, &c.